Date: 20030224
Docket: IMM-3846-01
Neutral citation: 2003 FCT 232
BETWEEN:
EMMA MONDILLA IGOY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review by Emma Mondilla Igoy, who seeks an order setting aside a decision and order of the Appeal Division, Immigration and Refugee Board, dated July 23, 2001. By that decision, the tribunal dismissed the applicant's appeal of a decision by a visa officer rejecting her husband's application for permanent residence, which she had sponsored.
[2] The visa officer had rejected Ms. Igoy's husband's application on three grounds, only one of which was dealt with by the Appeal Division. After hearing testimony of the applicant at a hearing in Vancouver, and hearing, by telephone, testimony of her husband, who was then in the Philippines, the Appeal Division upheld the visa officer's finding that the husband was a person described in s-s. 4(3) of the Immigration Regulations, 1978, which were then applicable, that is, he is a person who married the applicant in Canada primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of permanently residing with her in Canada. By s-s. 4(3), the husband was thus not a member of the family class and the Appeal Division held that it did not have jurisdiction to hear the applicant's appeal pursuant to s-s. 77(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
Background
[3] The applicant, Ms. Igoy, arrived in Canada in 1995 from the Philippines, her native country. She became a permanent resident of Canada in 1998. While working in the greater Vancouver area she met, apparently by chance in September 1997, Mr. Igoy, whom she had first met in the Philippines in the course of her nursing practice, before coming to Canada.
[4] Mr. Igoy, a citizen of the Philippines, arrived in Canada in 1998 with his employer, on a visitor's visa, ostensibly obtained to attend a trade show in Toronto. They had first travelled from the Philippines to Australia, then on to Canada, apparently with the intent of travelling on to the United States. Soon after he met the applicant in Vancouver, Mr. Igoy's application for a visa to enter the United States was turned down. He and Ms. Igoy began to see much of one another, continuing to do so over some nine months until she returned on a visit to the Philippines in June and July 1998. Mr. Igoy then remained in Canada while he was awaiting an extension of his visitor's visa.
[5] After her return to Canada, and after Mr. Igoy's application for an extension of his visitor's visa was turned down in August 1998, following a suggestion made to him that his chances of remaining in Canada might be improved if he were married in Canada, Mr. and Ms. Igoy were married in a civil ceremony in September 1998. Ms. Igoy then applied to sponsor him for permanent residence from within Canada, but that application was refused because of misrepresentations he admittedly had made at the time he obtained his visitor's visa to come to Canada, and because he had overstayed his visitor's visa and had worked illegally in Canada. In applying for his visa originally in the Philippines, Mr. Igoy had stated he was married and had a child, neither of which were true.
[6] In July 1999, Mr. Igoy returned to the Philippines voluntarily and there made application for admission to Canada as a permanent resident. It is that application which his wife sponsored and which was rejected by a visa officer in Manila. After that rejection, which Ms. Igoy appealed, and before that appeal was heard by the Appeal Division, Ms. Igoy returned to the Philippines in February 2001. On March 3 of that year, she and her husband celebrated a church wedding at a cathedral in the Philippines with their families and many friends present. Considerable evidence of that wedding ceremony was before the Appeal Division. In all, the applicant and her husband had dated for some nine months before they married in a civil ceremony held approximately a year after they had met in Vancouver. They lived together as husband and wife after they were married in a civil ceremony in September 1998 until the husband left in July 1999 for the Philippines. Further, they lived together for a month following their church wedding in the Philippines in 2001, before Ms. Igoy returned to Canada.
[7] In this application for judicial review, two principal issues are raised. First, it is said that the tribunal erred in law by making several erroneous findings of fact, in a perverse or capricious manner without regard to the material before it. Second, it is said the tribunal erred by ignoring relevant evidence of the applicant's church marriage with her husband and of their time spent together in the Philippines.
[8] I agree that the tribunal made some errors of fact which are not supported by the evidence, including reference to the applicant's mother as living in Canada, when she lived in the Philippines. The decision also stated that Mr. Igoy had said his employer did not have a business license in Canada, when his testimony was that he did not have a business license in the Philippines. Further, at one point in the decision, the tribunal refers to the husband as not telling the applicant everything about his misrepresentation "until November, 1997, which is after they were married". Elsewhere in the decision, the tribunal affirms that they were married in September 1998, which is the date borne out by the evidence.
[9] In my opinion, the first two of those errors have no significance for the tribunal's decision. The last error does have some significance for the tribunal's finding that the applicant did not learn about Mr. Igoy's misrepresentations made when he obtained his visitor's visa to come to Canada, and about the fact that his visa had expired and his request for an extension had been refused, before the civil ceremony of marriage. This was an important finding in support of the determination that the husband's primary purpose in marrying in Canada was to gain his admission to this country as a member of the family class. That is, Mr. Igoy was found to have entered the marriage primarily for purposes of immigration.
[10] Essentially, the tribunal's finding concerning the time at which the applicant knew the full details of her husband's immigration status in Canada, that is after the civil marriage ceremony, was based on its finding that the applicant's evidence that she knew those circumstances before the wedding was not believable. It relied on what it understood she had said in her direct evidence rather than variations of that given in cross-examination. Basically her evidence in direct examination was that she was not sure when she learned about those circumstances.
[11] In addition to the tribunal's finding about when the applicant knew fully of her husband's circumstances, it also made other findings which supported its conclusion about the husband's intent in marrying the appellant in Canada. It found the husband admitted that he thought he could apply to stay in Canada if he married here, that it was after the refusal of his application to extend his visitor's visa that the idea of going through a civil marriage was raised by a suggestion to him by his then lawyer, and that he admitted he had married so he could stay in Canada. Further, the tribunal found that his original purpose in leaving the Philippines was to gain entry to another country abroad, either Australia, the United States, or Canada, and that his primary purpose in marrying the applicant in Canada was to gain his admission to this country as a member of the family class.
[12] With reference to s-s. 4(3) of the Regulations, Mr. Justice Strayer, as he then was, in Horbas v. M.E.I. and S.S.E.A., [1985] 2 F.C. 359 at 369, said:
. . . It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse.
Here the Appeal Division found both requirements of s-s. 4(3) were met and that Mr. Igoy was thus excluded from the family class.
[13] I am not persuaded that the Appeal Division erred in its conclusion about the husband's intent at the time of the civil marriage in September 1998. That conclusion was reasonable, and it was open to it on the evidence it found credible. It was not an error of fact that would warrant intervention of the Court, as one made in a perverse or capricious manner or without regard to the material before it (s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended).
[14] I turn to the second issue raised by the applicant. It is urged that the Appeal Division ignored completely the evidence before it of the church wedding in the Philippines in March 2001. It is true there is no reference in the decision to that ceremony or the implications of it. For the respondent, it is urged that it is not necessary for the tribunal to specifically catalogue and weigh all of the evidence before it in making its decision. Moreover, it is said when the issue is the intent of the husband and whether he intended to live with the applicant permanently at the time of the marriage, it is open to the Appeal Division to place more weight on evidence closer in time to the civil marriage.
[15] I am not persuaded that evidence of the church marriage in the Philippines, some two and a half years after the civil marriage, and six months after the visa officer found the marriage was not acceptable to bring the husband within the family class, was even relevant in dealing with the issue before the tribunal. That issue concerned an appeal from the decision of the visa officer, a decision made well before the church marriage in March 2001, a decision made with reference to the civil marriage in September 1998, the marriage upon which the applicant based her sponsorship of her husband.
[16] The evidence of that and other events after the visa officer's decision, in my opinion, could only be relevant in any appeal by the sponsor, made specifically on the ground of compassionate or humanitarian considerations that might persuade the Appeal Division to grant special relief. Relief of that nature may be considered by the Appeal Division, but here only if the husband had been found to be a member of the family class, as counsel agreed before the Appeal Division. In the circumstances, it was not an error of law for the Appeal Division not to consider events after the date of the visa officer's decision. That evidence is not relevant in review of the Appeal Division's decision, which in essence turns on its finding that it lacked jurisdiction to consider the appeal since the husband was not within the family class pursuant to Regulation 4(3).
Conclusion
[17] Thus, I am not persuaded that the tribunal erred in findings of fact in any manner that would warrant intervention of the Court. I also find it did not err in neglecting to review in its decision, or indeed even in ignoring, the evidence of the church wedding ceremony and other events in the Philippines that occurred after the decision of the visa officer rejecting the husband's application for permanent residence in Canada.
[18] Neither counsel proposed a serious question of general importance for consideration for
certification as a basis for appeal. No question is certified.
"W. Andrew MacKay"
JUDGE
Ottawa, Ontario
February 24, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3846-01
STYLE OF CAUSE: EMMA MONDILLA IGOY
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: Thursday, June 6, 2002
REASONS FOR ORDER OF MacKay J.
DATED: Monday, February 24, 2003
APPEARANCES:
Andrew Wlodyka
FOR APPLICANT
Sandra Weafer
FOR RESPONDENT
SOLICITORS OF RECORD:
Lowe & Company
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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